According to the UGESP, the use of any selection procedure or criterion that has an adverse impact on hiring, promoting or other employment opportunities of members of any race, ethnic group, or sex is discriminatory unless the procedure is shown to be validated or otherwise job-related and consistent with business necessity.165
It is the contractor’s responsibility to provide validity evidence sufficient to justify each selection procedure or criterion found to have adverse impact. Validation is the demonstration of job-relatedness by showing the relationship between the selection procedure and job performance. If, in conducting the analyses of the contractor’s selection procedures, COs find that a selection procedure or criterion had an adverse impact, they must ask the contractor to provide all available information regarding its validation of the criterion in question. The contractor should provide information regarding the following:
- Development of the procedure and criterion, including, if the procedure is a written test, whether the contractor developed it internally or purchased it from a vendor;
- Validity studies it conducted, including the correlation coefficient (criterion and construct validation), or how the selection criterion or test content is linked with job requirements, that is, content validation;166
- Job analysis in the case of content validity studies and job information that describes how and why the selection criterion was chosen for criterion-related validity studies;167 and
- Consideration given to alternative selection criterion, the reason for rejecting the alternatives considered, and any efforts made by the contractor to lessen the adverse impact.168
COs must analyze this information, along with the analysis finding adverse impact caused by the use of the selection procedure and any other relevant evidence, in accordance with UGESP. Further analysis of the selection procedure or criterion at issue, or both, and their validation, will be coordinated between the regional office and the national office.169
165. 41 CFR 60-3.3A.
166. 41 CFR 60-3.5, 3.14 and 3.15.
167. 41 CFR 60-3.14A; 60-3.14B(2) and (3).
168. 41 CFR 60-3.3B.
169. See OFCCP Directive 2005-01, “Investigative Procedures When a Test(s) is One Cause of Adverse Impact in Hiring,”